New guide lays out fair use best practices for online video

You might not be able to name the "four factors" of fair use, but a new guide …

Many members of the web's creative class know about "fair use," but few could probably spit out the famous "four factors" that define it or lay out a clear set of best practices for dealing with copyrighted content. Fortunately, the Center for Social Media at American University has pulled together a panel of copyright experts to provide clarity, and the result is the highly readable Code of Best Practices in Fair Use for Online Video.

"Fair use" may be a deliberately ambiguous concept, one that can only be defined in any given situation by a judge, but that doesn't mean no best practices exist. Authors, filmmakers, and news organizations have for decades relied on rough consensus about what is and is not appropriate, and that worked well enough in a world where only trained professionals had access to the means of production.

But with millions of new creators rushing to post their clips, quotes, and mashups to the web, many of the people making use of copyrighted material have only a hazy sense of what might and what might not be "fair." The new document lays out a set of six general scenarios, explains the generally accepted extent of fair use, and throws in a few limits to be conscious of. Following the document's principles isn't guaranteed to keep you out of the courtroom, but it looks like a great place to start.

One of the best bits comes right up front, when the rationale for American "fair use" law is beautifully explained.

In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy.

Let's run quickly through the six scenarios, with the reminder that these only apply to copyrighted works, not to public domain or Creative Commons-licensed items.

Comment or critique. "Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny... So long as the maker analyzes, comments on, or responds to the work itself, the means may vary." Just don't copy so much that the new piece becomes "a way of satisfying the audience's taste for the thing that is being quoted."

Illustration or example. "This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one." But be careful to use no more than needed "to achieve the intended effect." Oh, and attribution is always a good idea.

Background. When copyrighted works show up in the background to video clips (like a Prince song playing on a boombox, perhaps), is that fair or not? The report says that "where a sound or image has been captured incidentally and without prearrangement, as part of an unstaged scene, it is permissible to use it." But if the use of the material "calls attention to itself" as part of the scene, it may well be going too far.

Quoting to memorialize or archive. Say you posted Steven Colbert's scathing comedic denunciation of President Bush to YouTube to make it available for anyone to access in the future; would that be okay? In some cases, says the report, but watch out when "the entertainment content is reproduced in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources."

Copying to launch a discussion. The paper suggests that posting video clips of copyrighted works to kick off a discussion is fine because the purpose of starting a conversation is a "transformative" use of the clip in question. Just realize that "the mere fact that a site permits comments is not enough," and posters should make it clear that they want to discuss the clip's content.

Mashups. Mashups are fair game "to the extent that the reuse of copyrighted works creates new meanings by juxtaposition" (think "Dramatic Prairie Dog," which is featured on the paper's cover). But "if a work is merely reused without significant change of context or meaning, then its reuse goes beyond the limits of fair use."

Take a look at the complete document and then feel free to, err, comment on it below.